New Article: Michele E. Gilman, The Poverty Defense, 47 Univ. of Richmond L. Rev. 495 (2013). Abstract below:
Poverty is correlated with crime, but it is widely assumed that it should not be a defense. In the 1970s, Judge David Bazelon challenged this assumption, proposing a rotten social background defense, that is, how growing up under circumstances of severe deprivation can subsequently impact a criminal defendant’s mental state and actions. Relatedly, other theorists have posited that poverty should be a defense to crime based on poverty’s coercive aspects or because society forfeits its right to condemn when it tolerates significant economic inequality. Critics counter that a poverty defense should not be adopted because it is not only inconsistent with American norms of individual responsibility, but also practically impossible. This vigorous debate has been deemed an ivory tower exercise. Yet scholars have entirely overlooked that a poverty defense is utilized in thousands of cases a year. In both civil and criminal child neglect cases, various states excuse conduct that would otherwise be neglect on account of a parent’s poverty. In short, a poverty defense is not hypothetical. Courts’ interpretations of the poverty defense in child neglect cases reflect the various theoretical strands posited by scholars. The case law reveals that a poverty defense is workable, but that its potential to help poor defendants is limited unless courts have a rich, multi-dimensional understanding of the causes and effects of poverty. This article explains how the poverty defense works in practice in child welfare cases, and can guide scholars, and more importantly, lawmakers and courts, in considering whether to extend a poverty defense to other areas of the law.